Docket: IMM-285-24
Citation: 2024 FC 1874
Toronto, Ontario, November 22, 2024
PRESENT: The Honourable Mr. Justice A. Grant
BETWEEN: |
MUSTAFA FAROUQ AHMAD ODEH |
Applicant |
and |
THE MINISTER OF IMMIGRATION, REFUGEES AND CITIZENSHIP CANADA |
Respondent |
JUDGMENT AND REASONS
I. OVERVIEW
[1] Mr. Mustafa Odeh seeks judicial review of a Decision by the Refugee Appeal Division [RAD] of the Immigration and Refugee Board [IRB]. In its decision, the RAD affirmed a decision by the Refugee Protection Division [RPD] that Mr. Odeh is neither a Convention refugee nor a person in need of protection pursuant to s.96 and s.97 of the Immigration and Refugee Protection Act [IRPA]. He challenges the RAD’s decision not to admit a separate Basis of Claim [BOC] narrative as evidence and its decision not to convene an oral hearing.
[2] For the reasons that follow, I will dismiss this application. The RAD reasonably found that the evidence in question was not a part of the Record, and was not admissible on appeal. It was also reasonable for the RAD to decline to conduct an oral hearing. There are no errors warranting judicial intervention.
II. BACKGROUND
A. Facts
[3] Mr. Odeh is a citizen of Jordan. He alleges that while in university, he met and began a relationship with a fellow student. Her large and influential family (and the tribe to which they belong) learned of their relationship and disapproved. She became pregnant, and her family forced her to reveal that the Applicant had caused the pregnancy. As a result, her family followed the Applicant, hit him, and “put [him] in the fire.”
He went to the police, who told him they could not help him. He fears for his life as a result.
[4] The Applicant left Jordan for Canada on September 3, 2018, and arrived on a study permit. In 2019, he returned to Jordan for a period but flew back to Canada in October of that year. He submitted a claim for refugee protection in May 2022. At his RPD hearing, the Minister intervened over concerns related to credibility and program integrity.
[5] The RPD rejected the Applicant’s claim in August 2023. The determinative issue was credibility. The RPD identified significant inconsistencies and omissions in relation to the information he provided in his BOCs. It also found that his return to Jordan and his delay in claiming refugee protection undermined his credibility regarding his subjective fear of harm.
B. The RAD Proceedings and the Decision under Review
[6] The Applicant retained new counsel and appealed the RPD’s decision to the RAD. On December 7, 2023, the RAD sent a notice to the Applicant stating that he had included in his Appeal Record a separate narrative [the BOC Narrative] that did not appear anywhere in the RPD record. The RAD noted the RPD record contained two BOCs (one signed, one unsigned), both of which had no separate narrative attached. It requested corroboration that the BOC Narrative in question had been disclosed to the RPD.
[7] Counsel for the Applicant responded to the notice, stating that the Applicant believes that all of the material provided in the Appeal Record was disclosed to the RPD. Counsel further argued that the transcript of the RPD hearing suggested that the BOC Narrative was disclosed but somehow did not make it into the official record. In the alternative, counsel submitted that the BOC Narrative should be considered as new evidence pursuant to s.110(4) of the IRPA, and that a hearing should be held, pursuant to s.110(6) of the IRPA.
[8] The RAD dismissed the Applicant’s appeal. On the issue of the BOC Narrative, the RAD considered the Applicant’s explanations and found that, on a balance of probabilities, the separate BOC Narrative was never filed at the RPD. It also found that the BOC statements referenced in the RPD hearing related to the Applicant’s answers to the questions on the BOC forms, not a separate BOC narrative. Finally, it noted a screenshot from Applicant’s RPD counsel sharing the document with his RAD counsel, but found that the email did not establish that the BOC Narrative document was ever filed at the RPD.
[9] The RAD also considered and rejected the Applicant’s submission that the BOC Narrative should be admissible as new evidence. It found that the BOC Narrative refers to events that took place in Jordan and Canada before the RPD decision and that it did not otherwise meet the statutory criteria for admission pursuant to s.110(4) of the IRPA. The RAD also found the evidence inadmissible per Canada (Citizenship and Immigration) v Singh, 2016 FCA 96 [Singh], because it had credibility concerns regarding the document’s source and the circumstances in which it came into existence. As the RAD determined that the BOC Narrative was not admissible new evidence, it also concluded that the criteria for triggering a hearing under s.110(6) were not met.
[10] On the substance of the Applicant’s claim, the RAD largely agreed with the RPD’s findings. It rejected the Applicant’s argument that the RPD had focused on peripheral details and minor BOC omissions in arriving at its credibility findings. The deficiencies in the BOC forms included:
The omission of his ex-girlfriend’s name;
The omission of any detail regarding their meeting and the development of their relationship;
The omission of details related to the discovery of their relationship by his ex-girlfriend’s family, and the names of his alleged attackers.
The significant inconsistency between his BOC form, which indicated that the family of his ex-girlfriend knew of her pregnancy and forced her to give them his name, and his testimony in which he stated that her family did not know she was pregnant.
[11] The RAD found that these details went to the heart of the Applicant’s claim; they were neither peripheral, nor microscopic, and the RPD had not erred in referring to them.
[12] The RAD also rejected the Applicant’s argument that case law regarding omissions from the previous form used by the IRB – known as the Personal Information Form [PIF] – should not apply to the BOC context. It noted that this Court has applied PIF case law to BOC omissions on many occasions since the BOC replaced the PIF. The RAD further found that the RPD properly rejected the Applicant’s explanation that the problems with his BOC form were a mistake, caused by poor translation.
[13] The RAD noted that the Applicant did not challenge the RPD’s finding on reavailment and delay, and so adopted the RPD’s reasons on those issues.
[14] Finally, the RAD conducted an independent assessment of the Applicant’s supporting evidence and found that the RPD correctly determined that it did not establish the core elements of the Applicant’s claim, including his alleged relationship or the claim that he was targeted by his ex-girlfriend’s family and tribe.
III. ISSUES AND STANDARD OF REVIEW
[15] The Applicant has not put forward any arguments on the substance of the RAD’s decision, but instead focuses his challenge on the RAD’s refusal: i) to accept that the BOC Narrative was in evidence before the RPD; or alternatively ii) to admit the BOC Narrative as new evidence; and iii) to conduct an oral hearing.
[16] While somewhat intermingled in the Applicant’s Memorandum, he argues that the RAD’s alleged errors were both unreasonable, and a violation of natural justice.
[17] I do not agree with the Applicant that the issues he raises on this application implicate principles of natural justice. His argument is entirely predicated on evidentiary and procedural questions that are codified at sections 110(3), 110(4), and 110(6) of the IRPA. These provisions dictate the process to be followed by the RAD. The principle of legislative supremacy clearly displaces any general rules of procedural fairness that would otherwise apply to the processes set out under these provisions. The Applicant may feel that the RAD’s understanding of these provisions caused an injustice, but this is a question of statutory interpretation that is clearly subject to the reasonableness standard: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paras 25, 306, 309 [Vavilov].
[18] In conducting a reasonableness review, a court “must consider the outcome of the administrative decision in light of its underlying rationale in order to ensure that the decision as a whole is transparent, intelligible and justified”
(Vavilov at para 15). It is a deferential standard, but remains a robust form of review and is not a “rubber-stamping”
process or a means of sheltering administrative decision-makers from accountability (Vavilov at para 13).
IV. ANALYSIS
[19] For the reasons that follow, I believe this application for judicial review should be dismissed. The RAD’s reasons were rational, intelligible, and justified. The Applicant has failed to point to any reviewable errors.
A. The RAD correctly found that the BOC Narrative was NOT a part of the RPD Record
[20] Having reviewed the entire Record, and having carefully considered the transcript of the RPD proceeding, it is crystal clear that the RAD was correct in finding that the BOC Narrative was not before the RPD.
[21] At the outset of the RPD hearing, the Member reviewed the contents of the Record, and specifically confirmed that the only new document to be considered was a second, updated BOC form. The only difference between this form and the original BOC form was the addition of the Applicant’s signature and an interpreter’s declaration. Over the course of this discussion, there is no mention of a separate BOC narrative. For example, one part of the exchange between the RPD Member and then counsel is as follows:
MEMBER: Okay. Just to get an insight into the amendment you are talking about with respect to the BOC, what exactly was updated there?
COUNSEL: The form did not have a signature because the claimant submitted the form himself. He didn’t have a lawyer. He just retained me recently. And I realized the form doesn’t have a signature of the claimant and the interpreter. So he signed the form. He reviewed the form, and made sure that the information is correct and signed the form. And I sent the complete form on Friday.
[22] After this, the hearing clearly proceeded on the basis that the narrative components of the Applicant’s story were included in the forms, and not in a separate BOC Narrative document. For example, in a later exchange, the RPD Member sought to clarify a discrepancy between the two versions of the BOC forms that had been submitted. In the exchange, it is clear that the only documents in question were the BOC forms:
MEMBER: I am looking at the signed form, question 2(h) – okay, I note that those words are not there. My presumption was that the updated BOC was to add the signature, and that’s why I was asking earlier on was there any other changes. Okay. I will reframe my question then.
COUNSEL: This was the only change. Sorry.
MEMBER: Are there any other changes, because this document only came while we were in the hearing, so I could not go through all the details of this.
COUNSEL: That’s the only change.
MEMBER: This is the only change and the signature?
COUNSEL: That’s correct.
[23] As a result of the above, it was reasonable for the RAD to conclude that the BOC Narrative was not a part of the RPD Record, and was therefore not automatically a part of the RAD Record.
B. The RAD’s decision not to admit the BOC narrative was reasonable
[24] Having found that the BOC Narrative was not a part of the RPD Record, the RAD then declined to admit it as new evidence because it did not meet the requirements set out at s.110(4) of the IRPA and in Singh. This was a reasonable decision. Subsection 110(4) of the IRPA establishes that new evidence submitted on appeal is only admissible where it:
arose after the RPD decision;
was not reasonably available at the time of the decision; or
could not reasonably have been expected in the circumstances to have been presented to the RPD before the decision.
[25] As the RAD noted, the BOC Narrative is undated, but refers to events that happened in Jordan and in Canada prior to the Applicant making his refugee claim. Absent any reasonable explanation as to why his own separate BOC narrative was not reasonably available to the Applicant at the time of the RPD hearing, it was reasonable for the RAD to find that the BOC was not new evidence and thus did not meet the s.110(4) criteria.
[26] I pause here to note that the Applicant has not, either before the RAD or before this Court, raised any concerns or allegations with respect to the conduct of his former lawyer. While the Applicant stated that he thought the full BOC narrative was before the RPD, he has not indicated that former counsel had the document in his possession in advance of the hearing, but failed to submit it.
[27] The RAD also reasonably found that the BOC narrative did not meet the further considerations set out by the Federal Court of Appeal in Singh. It considered the three Singh factors, namely whether the evidence was: a) new; b) relevant; and c) credible, and determined that although the BOC Narrative was relevant, it was neither new nor credible, owing to concerns with respect to its provenance. The BOC Narrative was unsigned, and there was no clear information as to when it was either drafted or shared with the Applicant’s previous counsel. As a result, the RAD concluded that the Applicant had failed to credibly establish the circumstances in which this evidence came into existence, and therefore the Singh criteria were not met. I see no error here – the RAD provided a clear rationale for its determination, and this rationale was logically connected with the legal and factual constraints within which it was required to act.
C. The RAD’s decision not to hold a hearing was reasonable
[28] It was reasonable for the RAD to decline to conduct a hearing in this matter. The RAD correctly observed that a document that is lacking in credibility, even if it is related to an Appellant’s overall credibility, does not automatically trigger an oral hearing under s.110(6) of the IRPA. It was also correct for the RAD to point out that a hearing under s.110(6) is not to “determine whether the new evidence is credible for admission, but rather to evaluate whether otherwise credible new evidence raises a serious credibility issue and justifies a reassessment of the overall credibility of the claim.”
[29] To put the point in the simplest of terms, it was reasonable for the RAD to reject the Applicant’s request for a hearing, given that the request was entirely based on evidence that the tribunal had already found was inadmissible on appeal.
D. The RAD’s decision on the merits was reasonable
[30] As noted, the Applicant has not made any submissions on the RAD’s consideration of the merits of the appeal. As such, I will not delve deeply into this issue. I will say, however, that in my review of the RAD’s reasons as a whole, I did not encounter any fatal flaws in its overarching logic. The RAD’s reasons were intelligible and transparent, and it justified its determination with a rationale that reflected the stakes of this particular administrative law context.
V. CONCLUSION
[31] For the reasons set out above, I will dismiss this application for judicial review. The RAD reasonably declined to admit the Applicant’s BOC Narrative as new evidence; it reasonably declined to conduct a hearing into the matter, and I see no errors in its consideration of the merits of the appeal. The Applicant has failed to raise a reviewable error.
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